A 2013 administrative complaint filed by the Federal Trade Commission (FTC) against an Ohio company, ECM Biofilms Inc., has finally concluded.
The FTC administrative complaint asserted that ECM’s biodegradability claims were inherently deceptive. The marketing for the ECM product included statements such as, “The plastic products made with our additives will break down in approximately 9 months to 5 years in nearly all landfills or wherever else they may end up.” The FTC Green Guides, which help marketers avoid making unfair or deceptive environmental claims according to federal law, provide guidance on biodegradability claims. The Green Guides expressly state that, “it is deceptive to make an unqualified degradable claim for items entering the solid waste stream if the items do not completely decompose within one year after customary disposal.”
After laboratory tests and consumer surveys completed by experts from both parties, the administrative law judge (ALJ) determined that ECM’s biodegradability claims were false and unsubstantiated. ECM appealed to the ALJ’s finding. However, another decision made by the ALJ wasn’t in the FTC’s favor. The ALJ also found that the FTC did not provide substantial evidence that ECM had implied a one year biodegradability claim, and therefore they failed to prove that ECM’s other biodegradability claims were misleading. Appeals were made by both ECM and the FTC.
The five members of the Commission affirmed the ALJ’s decision stating that there was, in fact, clear evidence from both parties’ experts. The Commission also found that ECM had in fact made implied claims that their products would degrade within a short period of time, reversing the ALJ’s second decision. ECM then petitioned a federal appeals court arguing that the decision from the Commission was made without substantial evidence, that the Commission invaded EPA’s jurisdiction to manage solid waste disposal, and that ECM’s First and Fifth Amendment rights were violated.
This March, the federal appeals court denied ECM’s petition for review. This decision has affirmed the FTC’s authority to enforce federal law regulating claims of biodegradability, setting a precedent for all future administrative complaints filed against companies selling products with biodegradable claims. With California law, which prohibits claims of biodegradability for all plastic products sold in the state, and this decision made by the federal appeals court, manufacturers should be on notice that false and misleading environmental claims will not be tolerated.
Read more about CAW's own Environmental Advertising and Compliance Campaign and how we utilize California law to reduce false and misleading "green marketing" claims by consumer product makers.